US v. Christopher Dighton, No. 10-5049 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5049 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER RICHARD DIGHTON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:09-cr-00047-MR-1) Submitted: September 14, 2011 Decided: December 2, 2011 Before DAVIS, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Denzil H. Forrester, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Christopher sentence imposed Richard following Dighton his appeals guilty plea, the 121-month pursuant to a written plea agreement, to conspiracy to manufacture and possess with the intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). Counsel for Dighton filed a brief in this Court in accordance with Anders v. California, 386 U.S. 738 (1967), certifying that there are no non-frivolous issues for appeal, but questioning whether: (1) the district court erred in accepting Dighton s guilty court imposed an unreasonable sentence. plea; and (2) the Dighton was informed of his right to file a pro se supplemental brief but has not done so. Finding no reversible error, we affirm. Prior to accepting a defendant s guilty plea, Fed. R. Crim. P. 11(b)(1) requires the district court to address the defendant in open court and ensure he understands: the nature of the charge maximum against possible him; any sentence, mandatory including minimum sentence; imprisonment, fine, the and term of supervised release; the mandatory special assessment; the applicability of the Guidelines and their advisory nature; his right to an attorney at all stages of the proceedings; his right to plead not guilty; his right to a jury trial with the assistance of counsel; his right to confront and cross-examine witnesses; his right to testify on his own behalf, as well as 2 his right against self-incrimination; any waiver provision in the plea agreement; the court s authority to order restitution; any applicable forfeiture; and the government s right to use any of his statements under oath in a perjury prosecution. Crim. P. 11(b)(1). Additionally, the district Fed. R. court determine that there is a factual basis for the plea. Crim. P. 11(b)(3). defendant s result of plea was force, 11(b)(2). The district voluntary threats, and or court did Fed. R. must ensure come about not promises. must Fed. R. the as Crim. a P. The defendant may not withdraw his guilty plea once the court accepts it and imposes a sentence. Fed. R. Crim. P. 11(e). Because Dighton did not move to withdraw his guilty plea in the district court or raise any objections to the Rule 11 colloquy, we review the plea proceeding for plain error. United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To demonstrate plain error, a defendant must show that: (1) there was an error; (2) the error was plain; and (3) the error affected his Olano, 507 U.S. rights are affected influenced impaired his the substantial 725, 732 if (1993). the defendant s ability to rights. court A defendant s determines decision evaluate United with to that plead eyes open States substantial the error guilty the attendant risks of accepting criminal responsibility. 3 v. and direct United States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal quotation marks omitted); see also Martinez, 277 F.3d at 532 (holding that a defendant must demonstrate that he would not have pled guilty but for the error). A review of the record reveals that the district court fully complied with the requirements of Rule 11. The court ensured that Dighton s plea was knowing and voluntary, that he understood the rights he was giving up by pleading guilty and the sentence he faced, and that he committed the offense to which he pled guilty. Dighton s counsel questions whether Dighton understood his stipulation to the drug amount in his plea agreement, but the district court sufficiently questioned Dighton about his understanding of the terms of the agreement, and Dighton repeatedly stated that he understood. Accordingly, we hold that the district court did not err in conducting the plea colloquy. Because Dighton did not request a different sentence than the one plain error. (4th Cir. ultimately imposed, we review his sentence for See United States v. Lynn, 592 F.3d 572, 578-79 2010). We begin by reviewing the sentence for significant procedural error, including such errors as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) (2006) factors, selecting a sentence based 4 on clearly erroneous facts, or failing to adequately explain the chosen sentence. (2007). Gall v. United States, 552 U.S. 38, 51 If there are no procedural errors, we then consider the substantive reasonableness of the sentence, taking into account the totality of the circumstances. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We both conclude procedurally sentence is Guidelines that and district substantively within range. the the See sentence Dighton s calculated applicable Sentencing Guidelines ( USSG ) ch. 5, pt. A (sentencing table) (2009). adequately explained its chosen basis for its decision. was reasonable. correctly U.S. court s sentence and had Manual The court a reasoned Counsel questions whether Dighton was entitled to a sentence reduction for playing a minor role in the offense; finding § 3B1.2. however, that the Dighton district did not court meet did the not clearly requirements err of in USSG See United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002) (standard of review). In accordance with Anders, we have examined the entire record and find no meritorious issues for appeal. affirm the district court s judgment. to withdraw as counsel. We therefore We deny counsel s motion This Court requires that counsel inform Dighton, in writing, of his right to petition the Supreme Court of the United States for further review. 5 If Dighton requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may renew his motion for leave to withdraw from representation. Counsel s motion must on state dispense that with contentions are a oral copy thereof argument adequately was served because presented in the the Dighton. facts We and legal materials before this Court and argument would not aid the decisional process. AFFIRMED 6

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